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President’s Message

United We Stand

            Congregations congregate. Lodges gather. Political Parties convene; teams pull together. We know that together we are stronger than the composite of our individual strengths.
And yet, not in all cultures, but certainly in ours, for the most part, we warehouse our elderly, send our kids to the four corners, and gather ”in unity” symbolically  at Christmas.
In these difficult economic times, mediators could be coming together for shared overhead, mutual emotional support, networking, fellowship, and learning. But the tendency in hard times is to yield to discouragement, to move toward isolation, depression, lethargy, to “hunker down”.
We had another outstanding First Saturday gathering yesterday (October 3). Doug Scott, who has participated in over 1000 mediations as local counsel attorney for credit card plaintiffs, shared with us the characteristics of good mediators, the pattern of mistakes he has seen, the special position of local counsel, and a host of other valuable observations. The dialogue was so lively that we talked right through our normal ending time.  Our First Saturday program now approaches two years of great opportunity to gather, learn and participate. Judges, lawyers, successful mediators, DMS leaders, and a host of others have come to share with us. Those who have participated have been very pleased. Have you been participating?
October 27th (the fourth Tuesday as always) Dallas ACR will gather for our monthly chapter meeting at 5:30 p.m. at 2900 Live Oak. We will elect officers for the next year and have another outstanding program. We will have a panel of mediator winners share with us what they did in marketing to become successful. Will you be there?
---Jerry Cosby, President, ACR Dallas Chapter

Election of Officers October 27
The annual election of officers will be held at the October 27, 2009, meeting. Gene Roberts, who was elected President-Elect last October, will assume the office of president. A new President-Elect will be elected, who will assume office after the October, 2010, meeting.
The Nominating Committee will present a slate of officers. Nominations may also be made from the floor.
A marketing panel of mediators will comprise the program for the meeting. Seasoned, experienced mediators will share information on how to get mediation business.
ACR DALLAS CHAPTER
BALLOT
Board and Officers serve immediately following the 2009 October General Meeting through the October 2010 General Meeting.

Candidates for the 2009-2010 Officers of ACR – Dallas
Position                       Nominee                      Vote                Write-In Nominee       Vote   
President                     Gene Roberts  (Will automatically take office having been elected last year.)
President-Elect            Martha Johnson                                                                                  
Secretary                     Rita Krizmonics                                                                                 
Treasurer                                                                                                                                
Candidates for the 2008-2009 At Large Board of Directors of ACR – Dallas
Three (3) Positions Open
Director at Large         Stan Parker                                                                                        
Director at Large         Marc Lilly                                                                                          
Student Director                                                                                                                    
Note:  Directors at Large serve two year terms; two directors elected last year (Ken Burdin and Audrey Moorhead) will continue to serve on the Board as they complete the second year of their term.  Three Board Members (Connie Blair, Pam Rhodes and Arlinda Whitaker) have resigned.  Nominations for Treasurer and Student Director, as well as for other offices, are welcome.  Please contact Martha Johnson with any nominations ‘from the floor’.

            REMEMBER:  Only members who have paid their 2009-2010 dues ($40.00) can vote on October 27th.  Your dues must be paid by October 23rd in order for you to be eligible to vote.  If you are in doubt about your dues status, contact Connie Blair at blairclc@sbcglobal.net.  Do not assume your dues are current!  You can now pay dues on line at our new website – www.acrdallas.org

            You may return your ballot by email or complete one at the October 27th meeting.  Results will be announced at the end of that meeting.  Thank you for your participation.

                                                                        The ACR Dallas Nominating Committee
Martha Johnson, Chair
mljlawyer@sbcglobal.net

_______________________________________________________________________
 

State Laws in Effect; Federal Bill Before the Senate

Foreclosure Mediation Encouraged
By Joe Hewitt

            Laws requiring mediation before foreclosure are spreading across the country like rain on the financial crisis wildfire.
Laws in Delaware, Nevada, Ohio, and Florida are encouraging or requiring mediation between lenders and homeowners facing foreclosure.
Democratic United States Senators have sponsored a new bill that would require all lenders and servicers operating in the U.S. to discuss reasonable modification options with the borrowers before foreclosing on home owners, according to the October 5 Washington Report of Homes 101.
Sherrie Abney, Carrollton Texas Attorney who specializes in Real Estate Law, said she was not aware of any such law in Texas. “However, there may be plans for something in the 2011 session. Lenders are overwhelmed with foreclosures and this has contributed to the need for forced negotiations. My clients have reported that when a home owner who is having trouble making payments calls the lender, the lender won’t talk to them unless they’re three months or more in arrears. So people who are trying to prevent a foreclosure are frustrated. It only makes sense for lenders to come to the table and attempt to work things out with their borrowers.  Requiring mediation or, if both parties agree, the use of Collaborative Law would allow some folks to stay in their homes and lenders to avoid the time and expense of foreclosure,” Abney said.
According to the September 20 Delaware News Journal on Line, Delaware averaged about 2,000 foreclosure filings each year. That number more than doubled to 4,500 in 2008, the same year the global economy unraveled. Home mortgages were blamed for much of the financial instability. More than 6,000 filings are expected this year.
The Delaware state government now gives homeowners the option of participating in court mediation to find mutually agreeable alternatives to foreclosure with their lender.
The Florida Bar Association said pre-judgment mediation could save more than 130,000 homes from foreclosure and assist more than 360,000 Florida borrowers. In Ohio, where the pace of foreclosures was withering local economies, the chief justice of the state's Supreme Court developed a plan requiring mediation in cases involving foreclosures of owner-occupied residential properties, the News Journal article said.
For borrowers unable to handle the payments offered under a modification plan, the Senate bill would create a multi-billion national fund for states to make loans or grants to prevent foreclosures.
The bill, called the Preserving Homes and Communities Act, was authored by Rhode Island Senator Jack Reed, a senior banking committee member. Its co-sponsors include Illinois Senator Dick Durbin, Jeff Merkey of Oregon and Sheldon Whitehouse of Rhode Island.
The report quoted Durbin, “Voluntary efforts to keep families in their homes have failed.” This bill will force lenders to modify qualified mortgages rather than letting them move quickly to foreclosure, which destroys households and neighborhoods.
The mortgage payment assistance program created by the bill would provide money to state housing agencies to set up revolving funds to assist people who've lost income in the recession and now face the imminent loss of their house.
The bill would also fund state and local programs that create mandatory mediation requirements. Lenders would have to allow mediation efforts between themselves and their borrowers before filing foreclosures against home owners, the Washington Report said.
KLAS, Channel 8, in Las Vegas reported September 14 that one in every 13 households in Clark County received a foreclosure filing the first half of 2009. The Boyd School of Law on the UNLV campus is offering classes to help homeowners entering into mediation, the report said. Nevada Supreme Court's Foreclosure Mediation Program was created to give homeowners facing foreclosure an opportunity to talk about a loan modification with lenders. 
Homeowners who receive Notices of Default from their lender after July 1, 2009 are able to request mediation at that time.  Over 1,000 homeowners so far have requested mediation, which costs both the homeowner and the lender $200 each, the KLAS report said.

Ralph Eugene (Gene) Roberts, Jr., Esq., BS, MA, JD.

Gene Roberts Becomes ACR Dallas President

            Gene Roberts will take office as president of ACR Dallas Chapter at the close of the October 27 meeting. He was elected last October.
Roberts was graduated cum laude from Lamar University, Beaumont, Texas, with a Bachelor of Science degree with 4.0 average and a minor in psychology. He received a Master of Arts in Political Science degree from The University of Houston, Houston, Texas.
            He was awarded the Juris Doctorate by Southern Methodist University in 1998. Roberts took additional training at Oxford, England, University in Employment Law and International Business Transactions. He has received numerous academic awards and is the author of scholarly legal publications.
Roberts practices law from a Greenville Avenue office in Dallas. Areas of practice include mediation, business conflicts (breach of contract, deceptive trade practices), real estate litigation (boundary dispute, contract for deed, landlord-tenant), labor and employment (sexual harassment, separation agreement, age discrimination), bankruptcy (representing court-appointed chief restructuring officer), wills and estate planning, collections (representing New York-based company; representation of state bank in defense actions), and corporate matters (drafting notes and bills of sale for Georgia-based client, drafting minutes, resolutions, and consents for Texas limited liability company).
Areas of litigation practice include  financial institution; complex commercial; trademark and copyright infringement; misappropriation of company and trade secrets; real property issues; title insurance defense; fraud; Deceptive Trade Practices Act; contract disputes; conspiracy; commercial landlord/tenant; garnishment, sequestration, extraordinary remedies, and injunctive relief.  Managed docket, take and defend depositions, conduct settlement negotiations, engage in discovery, motion practice, argue at hearings for summary judgments, temporary restraining orders, and motion to compel. 
Areas of practice include representation of financial institutions, collections, third-party insurance defense (areas include wrongful death in an airplane crash, premises liability in an apartment shooting incident, stock fraud, dram shop, personal injury, and construction), condemnation, eminent domain, constitutional tolling, residential landlord/tenant disputes, commercial landlord/tenant disputes, defense of wrongful foreclosure, DTPA, contract disputes, ad valorem taxation.  Drafted incorporation documents for non-profit enterprise.
Roberts is licensed by the State Bar of Texas, United States District Courts for the Northern, Southern, and Western Districts of Texas, and United States Fifth Circuit Court of Appeals.

Confidentiality at Risk in Britain

            A British court has ordered a mediator to testify about events that took place during mediation, according to an article by Victoria Pynchon in the September 18, Business Conflict Blog. Pynchon says, “A decision by Hon. Mr. Justice Ramsey of the Royal Courts of Justice in England that seems to render unenforceable the commonplace contractual provisions             immunizing mediators from testifying as to the conduct of the mediation.”
The claimant sought to set aside a settlement agreement claiming that it was entered into under economic duress. The defendant requested that the mediator be compelled to give evidence as to what happened at the mediation, and the claimant did not object. The court ordered the mediator to produce her files and give a witness statement.”

Financial Crisis = Boom in Divorce Mediations

            The economic downturn has brought an increase in divorces, resulting in increased business for divorce mediators. Top divorce attorneys say it’s easier to divide assents with stock prices and real estate values down.
An article in the September 20, Boston Herald by Carley Thornell, quoted divorce attorney Gary Nickelson, “We started to notice a trend in the number of superwealthy folks beginning divorce proceedings. The thinking is, ‘Hmm, this might be the best time to get out, depending on how much my assets are worth.’ ”
Massachusetts Probate and Family Court statistics for fiscal year 2008 show that compared to 2004 - when the economy was stronger - the number of divorce filings increased 6.2 percent, support claims grew 9.5 percent and divorce modification filings jumped 11.4 percent, according to Thornell’s article.
In Massachusetts typically the cost of divorce mediation is $250 an hour, split two ways and takes 10 hours or less. Each party then gives the settlement agreement to his/her attorney for approval and final submission to the court which saves a substantial amount of money.

Faults “No Settlement” Mindset
Mediator Lauds Collaborative Law

            Irene Zucker lauded Collaborative Law and criticized attorneys who have no intention to settle in mediation.            
In a letter to D Magazine on Collaborative Law, she said, “(The article) Collaborative Law Promises a Kinder, Gentler Approach to Business Disputes, was excellent.  As a non-attorney, Texas Credentialed Advanced mediator, mediating for over 12 years, I have experienced dealing with many attorneys who represent their clients in court ordered mediations.  Many, I have found, appear to come to the mediation to satisfy the court order with no intention to settle. There's no real money in doing so, regardless of what their client, who trusts them, wishes.  A good mediator can stop them in their tracks using the mediation process as a safeguard which encourages resolution through discussion and mutual understanding by the parties. 
Collaborative Law as you have succinctly explained it, tends to put a "damper" on attorneys chomping at the bit to litigate and who consider this new approach a threat.  Mediation, I believe, went through the same growing pains until it was eventually accepted.   Perhaps opponents should look at Collaborative Law from a perspective that views it as yet another option for dispute resolution and a new field that opens up more opportunities for all Alternative Dispute Resolution professionals at every level.  More importantly, it would be yet another (gentler) option for the disputants themselves to settle their differences.  After all, aren't these are the very people we are serving?”

IRS Expanding Mediation
The Internal Revenue Service (IRS) has expanded the number of cases eligible to go to mediation, which is considered part of the appeal process, according to a September 13 article in The Journal of Accountancy.
.The taxpayer may voluntarily go to mediation only after appeals settlement discussions are unsuccessful and, generally, when all other issues are resolved, the article said.

British Ask for Mediation for Separated Couples
A group of British government ministers is pushing for a law that would compel separating couples to consider mediation before going to court, according to the September 14, London Times’, business.timesonline. 
At present only couples funded by legal aid must consider mediation as a method of sorting out arrangements over children and finances.
Bridget Prentice, the Justice Minister, said that she and Lord Bach, her fellow minister, were discussing ways to increase the take-up of mediation. “In many cases mediation can offer considerable advantages over going to court,” she said. The move has strong backing among many family lawyers, the Times article said.

New ADR Center in San Marcos

A new ADR center has opened in San Marcos. The nonprofit Central Texas Alternative Dispute Resolution Inc. (CTADR) is providing mediation to Hays County residents at low cost, according to an October 1 article in the San Marcos Daily Register. Anna Bartkowski is executive director.